November 5th. 1762.

The Cause of Jeffries Town Treasurer of Boston and Sewal and Edwards and several others
being suits for the Penalties arising by the Law of the Province for building and
covering those Building[s] not with slate nor Tile but with shingles.1

Mr. Gridley made a Motion that those Actions should be dismissed because the Judges
were all Interested in the Event of them. Two of the Judges vizt. Wells and Foster
Hutchinson, being Inhabitants of Boston, and the other two vizt. Eliakim Hutchinson
and Watts, having real Estates in that Town, to the Poor of which those Penalties
are appropriated. After a long Wrangle, as usual when Trowbridge is in a Case, the
Court determined to continue the Action, that Application might be made to the Governor
and Council for Special Judges. Wells and Foster declining to set, and Watts too.

The Case of a Witness was mentioned in the Argument. A Witness cannot depose, when
he is interested. A Juryman may be challenged who is interested. But Persons belonging
to Corporations, are allowed for the Necessity to testify, in Cases where those Corporations
are in• { 231 } terested. And Jurymen and Judges belonging to this Province sat in the Case of Gray
and Paxton, tho interested, for the Necessity.

This Motion Mr. G. said could not be reduced to a Written Plea. He could not plead
to the Jurisdiction of the Court. The Court of Common Pleas had undoubted Jurisdiction
of the Cause but the Judges could not set because interested. Their Honours were not
the Court of Common Pleas but the Justices of the Court of Common Pleas. The Court
of Common Pleas was a Body Politic, an invisible system, a frame in the Mind, a fiction
of the Law. The President and Fellows of H[arvard] Colledge are not H.C.

The Case in Strange was produced, in which Ld. Raymond went off the Bench, the Parish
of Abbots Langley in which his Lordship lived being interested. An order of 2 Justices
for the Removal of a Pauper, confined by the Sessions was carried to B.R.2 by Certiorari.

Authorities from Hobarts and Cokes Rep[orts] were produced, to shew the Tenderness of the Law for this Maxim that a Man shall
not be Judge in his own Cause, and that an Act of Parliament vs. natural Equity as
that a Man should be judge in his own Cause would be void.

Mem. After the Court had given Judgment Mr. Gridley moved for a Minute of the Reasons
of the Judgment. Wells said the Court was not accountable to the Bar for their Reasons.
But Otis said the Courts at Home never refused their Reasons for any Judgment when
the Bar requested them. Because if the Bar are left ignorant of the Reasons the Court
go upon, they will not know how to advise and direct their Clients. And after some
Debate, the Clerk was ordered to minute the Reason for the Continuance, which was
that three of the Judges apprehended themselves interested and so not a Court competent
to try the Cause.

G. contended that if the Court should continue the Causes, they could not refuse setting
on the Tryal, because, an Imparlance was a Judicial Act, and so an Assumption of Jurisdiction.
F[oster] H[utchinson] said that Dismissing the Actions would be a Judicial Act, as much as Continuing.

1. From the names of the judges mentioned in the next paragraph it is clear that this
case was tried in the Suffolk Inferior Court.